Apologies for the distinctly pomo headline, but it actually goes some way to highlighting the salient points in the latest gay rights stushie to engulf the United States. Yes, the chicken in the sex class stushie started simply enough… with (and in) a fast food chain.
The fast food chain in question is Chick-fil-A, which has neither made its way across the pond to the UK nor, so far as I am aware, to Australia or New Zealand. Like better known US fast-food exports, it is Southern, its chicken is fried, and its owners are religious. Very religious.
Chick-fil-A has long adhered to a chain-wide ban on Sunday trading (common in the Highlands and Islands over here, but unusual in the 24/7 take-away culture of the USA) and has even gone so far as to enquire into its franchisees’ family arrangements: wanting to know if are they married, say, or if their children are all their own. The company is wholly in private hands, and not listed on the stock exchange. Its CEO (Dan Cathy) also has a long history of donating to various religious organisations, particularly those opposed to gay rights. These groups range from the benign to the appalling: the latter include bodies involved in promoting Uganda’s ‘kill the gays’ bill:
Opposition to gay marriage has become a matter of pride for the Georgia-based chain. Worse by far is the support, as IRS forms show, by the WinShape Foundation (Chick-fil-A’s charitable arm) for various anti-gay bodies including Exodus International, whose leaders talked up its gay “cure” in Uganda before the country introduced legislation that threatens gays with death or imprisonment — although Exodus now says that going to that anti-gay conference was a mistake.
The problem with Chick-fil-A goes beyond LBGT issues. A former worker recently filed a lawsuit against the parent company in which she claims that a franchise owner of a Chick-fil-A in Georgia fired her so she could be a stay-at-home mom. The corporate culture embraces an overt religiosity, from prayer meetings at business retreats to asking people who apply for an operator license to disclose their marital status and number of dependents.
[It is odd how much of this Western posturing involves Uganda; what did Uganda do, one wonders, to invite such prurient attention from Western crazies? What sets Uganda apart from other small African nations with similar social and economic problems - poverty, tribalism, weak institutions, localised conflict, etc?]
Hating on the gays… and the First Amendment
On July 16, Dan Cathy decided to be particularly ‘out-and-proud’ about his views when it comes to gays and lesbians, and, well, the internet exploded. Followed, of course, by the tinder-dry substratum of US public differences on this and related issues (abortion and contraception).
Progressive mayors and public officials threatened Chick-fil-A with zoning laws; to their credit, other progressive organisations (including the much maligned ACLU) swung into action, pointing out that, actually, no, that’s viewpoint discrimination and the US has an unusually well-drafted prophylactic against that sort of thing. It’s called the First Amendment. As James Peron points out, it became clear that the progressives who did want to get their hands on the levers of power and use them against people with whom they disagreed were a small (if powerful) minority, and that many conservatives (US definition) were engaging in rank hypocrisy:
A tiny handful of politicians went too far, however, threatening to use regulatory powers of local government to deny business, or zoning permits to the restaurant, in order to punish the owners, Don [sic] Cathy and his family, for their anti-gay views.
Such a move would be highly unconstitutional and a blatant assault on the First Amendment. If conservatives denied permits to businesses owned by individuals vocal in their support of marriage equality, there would be an outcry. So it was with this case.
Almost immediately, mainstream liberals started criticizing these threats. Conservatives, however, tended to look the other way and noticed only the minority position of these publicity-seeking office holders. Santorum huffed that the controversy shows “the absolute intolerance of the Left in America. There can be no dissent from what their position is.”
This comes from a man who wants government censorship of erotica, the Internet and video games — for a start. Over at the neo-con publication Commentary, Bethany Mandel claimed that liberal tolerance “only extends to those who agree with their worldview.”
Not in our city
Perhaps the most anguished response (albeit one still censorious) came from Speaker of the New York City Council, Christine Quinn. Quinn is lesbian and recently married her partner of many years (New York is one of the US states which has legislated for equal marriage). For the avoidance of any doubt, I wish to make it clear that I disagree with Quinn, even though constitutionally, she is on stronger ground. I do, however, want readers of this post to keep her arguments in mind:
Today, Council Speaker Christine Quinn took it a step further and wrote a letter to NYU President John Sexton asking him to sever ties with the chain, effectively kicking them out of the city. The only Chick-fil-A in New York is located on the NYU campus. She also asked that, should he kick them out, the employees from the Chick-fil-A be given new jobs with whatever restaurant they get to replace it. She also started a petition demanding Chick-fil-A President Dan Cathy apologize and change his position on gay marriage.
Law professors have pointed out that denying [Chick-fil-A] the right to build within their city violates their First Amendment right, but Quinn’s request is different. NYU is a private university with a huge population of gay students. It might be easier (and legal) for them to get out of their contract, or simply not renew it once their current deal is up, than a government body not allowing them to build.
The pile on (or, to be more accurate, the bargain bucket)
From there, this could only get bigger. Conservative luminaries like Rick Santorum, Sarah Palin, and Mike Huckabee weighed in:
Today is National Chick-fil-A Appreciation Day, at least according to Mike Huckabee. The evangelical minister and former presidential candidate — along with Rick Santorum, Sarah Palin and a host of other Christianist culture warriors — is mounting a counteroffensive after big-city mayors tried to shoo the Southern chicken chain from their borders, the Jim Henson Co. pulled its toys from Chick-fil-A’s kids’ meals, and the fast-food company has become a flash point for the whole LGBT community and all their sympathizers in the nonfundamentalist real world.
Next thing, of course, there was an anti Chick-fil-A day, with people proposing a consumer boycott. To the boycotters’ credit, there was no attempt to prevent third parties from trading with Chick-fil-A (a secondary boycott). Instead, it was a simple case of ‘don’t eat at this place, it supports toxic causes’. It has its counterparts in boycotts of Norwegian fish by environmental groups or — from the other side of the fence — the attempt by ‘One Million Moms’ to initiate a consumer boycott of US department store chain JCPenney (the US equivalent of Australia’s Target or the UK’s BHS) because it used gay comedienne Ellen DeGeneres in an advertising campaign.
Causes have consequences
In the process of watching the internet feathers fly, I’ve seen friendships come to grief and some of the most awful bigotry displayed. To my libertarian friends’ great credit (I am proud to count the HuffPo’s James Peron as one of those friends), they have tried to be consistent. Step away from the levers of power, everybody. Remember that if you wrest those levers from your enemies, they can wrest them from you. That’s the way democracy works. This is one issue where people are going to have to develop the maturity to agree to disagree.
I have also constantly been put in mind of Jonathan Rauch’s splendid essay for The Economist, ‘Majority Report‘. In it, Rauch argues that LGBT activists have to be very careful how they put their case as support for their cause moves from minority to majority in numbers. He observes:
In a messy world where rights often collide, we can’t avoid arguing about where legitimate dissent ends and intolerable discrimination begins. What we can do is avoid a trap the other side has set for us. Incidents of rage against “haters,” verbal abuse of opponents, boycotts of small-business owners, absolutist enforcement of antidiscrimination laws: Those and other “zero-tolerance” tactics play into the “homosexual bullies” narrative, which is why our adversaries publicize them so energetically. The other side, in short, is counting on us to hand them the victimhood weapon. Our task is to deny it to them. Two important strategic changes would go a long way toward doing that. First, accept legal exceptions that let religious organizations discriminate against gays whenever their doing so imposes a cost we can live with. Second, dial back the accusations of “bigot” and “hater.”
In the gay community, taking any kind of nonabsolutist attitude toward discrimination is controversial, to say the least—largely because we carry in our heads the paradigm of racial discrimination. In today’s America, though, the racial model is overkill for gays. Injustice persists, unquestionably, but the opposition is dying on its feet and discrimination is in decline. And, unlike white supremacism, disapproval of homosexuality is still intrinsic to orthodox doctrines of all three major religions. That will change and is already changing (younger evangelicals are much more accepting of same-sex relations than are their parents), but for now it is a fact we must live with.
Before we shrug and reply, “So what if it’s religious? It’s still bigotry, it’s still intolerable,” we need to remember that religious liberty is America’s founding principle. It is embedded in the country’s DNA, not to mention in the First Amendment. If we pick a fight with it or, worse, let ourselves be maneuvered into a fight with it, our task will become vastly harder.
Then there are the real-world, messy realities arising from both pro- and anti-Chick-fil-A ‘days’. Although rare, Chick-fil-A does have some gay employees. This young man was complimented by homophobic customers only to be abused on his way home (while no doubt dressed in identifiable Chick-fil-A clothing) as a bigot and hater:
Speaking to the Huffington Post, one employee described it as “hater appreciation day”, calling it a “very, very depressing” experience.
Another gay employee who has worked at the chain for seven years said he was confronted with homophobic attitudes from supportive customers but also abused by other members of the public who he believed supported the company’s position.
He said patrons would come into his outlet to support Chick-fil-A, and then “say something truly homophobic, e.g. ‘I’m so glad you don’t support the queers, I can eat in peace’.”
Conversely, he continued: “I was yelled at for being a god-loving, conservative, homophobic Christian while walking some food out to a guest in a mall dining room.
“It seems like very few people have stopped to think about who actually works for Chick-fil-A and what those people’s opinions are. They are putting us in a pot and coming to support us or hate us based on something they heard and assume we agree with.”
As most of my readers would know from reading this blog, I am deeply suspicious of entrenched rights. I don’t think people have inherent rights on the basis of their membership of the human race. I am suspicious (philosophical arguments aside) partly because Western states without entrenched bills of rights and with Westminster style parliamentary sovereignty have extended rights to minorities and the disadvantaged both more rapidly and with less rancour than states without parliamentary sovereignty and with entrenched bills of rights. Contrast Britain with the US, or Canada with Australia pre- and post- the enactment of the Canadian Charter of Rights and Freedoms. Consider individual cases: abortion in the EU (which has followed the British model and enactment by Parliaments) as opposed to abortion in the US (judicial legislation via the SCOTUS).
Add sexual and racial discrimination to the mix. The Europeans, British and Australians have been much more successful with their parliaments making the laws. The Americans (and now, the Canadians – think of the endless wrangling over their hate speech laws) have huge and ugly fights over stuff that in terms of decisions one way or the other is properly in the hands of the people’s representatives. Yes, that means politicians. Yes, I know politicians are often woeful. So, however, are judges, and you can’t vote them out. It’s worth keeping that in mind.
This failure to think about what rights actually mean or what they do when entrenched means that large parts of them throughout the West now conflict with an important rule of law principle: to wit, treat like cases alike.
The ‘sex class’
While I have a great deal of respect and sympathy for Rauch’s position above, and have often cited him in argument on this blog, I think a statement of his with which I previously strongly agreed is theoretically wrong, and perhaps empirically wrong as well. When he says ‘accept legal exceptions that let religious organizations discriminate against gays whenever their doing so imposes a cost we can live with,’ he inadvertently reveals that religious organisations are allowed to discriminate against gays (and, by corollary, a much larger group, women) in ways that are flatly prohibited in other circumstances.
Religious organisations cannot engage in the same discrimination against people on the basis of race: if a black man wants to be a minister of religion in even the most conservative religious tradition, then provided he meets that body’s selection criteria, he cannot be refused entry. Change race to sex or sexuality, however, and the religious body can reject him or her on the basis of a characteristic over which he or she has no control – just like race is a characteristic over which an individual has no control.
You need to be aware that attempts by religious bodies to engage in racial discrimination in the same way that they engage in sexual and orientation discrimination were definitively ruled out (in the US) in Bob Jones University v. United States, 461 U.S. 574 (1983), a SCOTUS ruling that held that religious exemptions that allow churches to discriminate against women (gays were not, in 1983, even a twinkle in the SCOTUS’s eye) could not be extended to blacks:
[i]t would be wholly incompatible with the concepts underlying tax exemption to grant tax-exempt status to racially discriminatory private educational entities. Whatever may be the rationale for such private schools’ policies, racial discrimination in education is contrary to public policy. Racially discriminatory educational institutions cannot be viewed as conferring a public benefit within the above ‘charitable’ concept or within the congressional intent underlying 501(c)(3).
Parliaments and courts all over the West have come to the same conclusion as the SCOTUS in Bob Jones. Britain’s Equality Act 2010, for example, protects religious organisations from the heavy hand of human rights law when they discriminate against women and gays (in employment and elsewhere), but not when they discriminate against blacks and Asians. The discriminatory components of the Equality Act — at least with respect to LGBT people — are in the process of being beefed up even further in the wake of the Scottish Government decision to legalise same-sex marriage:
As indicated in the consultation, no religious body will be compelled to conduct same sex marriages – protection for religious bodies who do not wish to conduct same sex marriages already exists under UK equality law.
Where a body does decide to conduct same sex marriages, the Scottish Government also intends – again, in line with the view expressed in the consultation – to protect individual celebrants who consider such ceremonies to be contrary to their faith.
To give certainty around this protection, we consider that an amendment to the UK Equality Act will be required. We will work with the UK Government to secure agreement to such an amendment before the formal introduction of a Bill to the Scottish Parliament and with a view to it being in place before the Bill comes into force.
The relevant state-based laws in Australia are similar in intent and effect.
There is only one reasonable conclusion to be drawn from this: there are two different ‘rights’ classes lurking around in the mess of pottage that is human rights law. If you fall into the ‘sex class’ you get a smaller basket of rights than if you fall into the ‘race class’.
Bad luck, chicks and queers.
This ‘separate but equal’ caper means, often, there’s an undignified scramble to get one’s group into the ‘race class’: hence the persistent attempt by Muslim activists — in the UK and elsewhere — to conflate ‘religion’ with ‘race’ and make it an equally protected characteristic. Don’t want to be lumped in with the chicks and the queers, oh no. Might catch girl germs or gay germs.
Like cases alike
This represents a gross attack on the first principle of the rule of law, because like cases are clearly not being treated alike.
As I see it, there are only two ways to be consistent in this, but advocating either opens an almighty can of worms (and quite possibly an almighty can of whoop-ass) on the collective body politic.
1. End the artificial distinction between the ‘sex class’ and the ‘race class’ by stripping religious bodies of their capacity to discriminate on the basis of sex and sexuality, on pain of losing charitable status (as was done in Bob Jones with respect to race).
2. Accept that modern human rights law is an incoherent mess and do away with it altogether. Yes, Virginia, that means allowing private organisations to discriminate if they want to, on whatever basis.
I am a classical liberal, so I favour the latter, but not without enormous reservations. I hate being backed into an intellectual corner, but the global failure to think about the underlying problems in human rights law – going right back to the first attempt to universalise it in 1948 – mean that large parts of it simply no longer make any sense. I also think that forcing people who do not like each other to associate has often had awful consequences. There is a reason why Equity did not, historically, attempt to enforce contracts of service. Because working with people who hate you is kind of sucky, and, you know, sometimes fatal.
Not without hating the queers
There is something else that the escaped chicken running around in the sex class has taught me in the last week, and it is this: it is impossible to separate monotheism from homophobia, but only difficult to separate it from misogyny.
Why is it impossible to separate monotheism from homophobia? For the simple reason that every monotheistic tradition hates on the queers, while very few polytheistic traditions do (it appears that the odd paganism out when it comes to queer-hatred is the Aztec religion, and I think it’s fair to say that the Aztecs are not a civilisation to which one ought to look for moral guidance).
By contrast, misogyny is present in many pagan traditions (think of Classical Athens, or Confucian China). It seems the effect of monotheism is simply to intensify it, as well as to engage in rights-stripping where women have previously enjoyed high status. This happened when Christians got their hands on the levers of power in the late Roman Empire.
Let me put it this way: imagine if slavery and misogyny had not existed in classical antiquity, only arising as a result of the emerging power of Christianity and, later, Islam. Women and blacks would no doubt feel entitled – if they then got their hands on the levers of power – to make life very difficult for Christians and Muslims. It would take preternatural levels of control on the part of the two groups in order to engage in liberal (UK definition) tolerance once they assumed authority (as opposed to recycling religious people as firelighters… oh, wait).
Of course, we all know that Christianity can do without slavery. Unfortunately, Islam may not be able to manage without slavery … it is more theologically awkward for Muslims to disavow it than Christians, because in Islam all law (including the law that sanctions slavery) is seen as divine, while Christian — or Canon law — has always been seen as a human creation, and mutable. No lesser figure than Aquinas cautioned against trying to know the mind of God.
Now, LGBT people are in the same position as blacks and women in my imaginary, Niall Fergusonish scenario above. Their position is only as it is because of monotheism. Had Athens/Rome emerged triumphant instead of Jerusalem (to adapt a phrase of Jason Soon’s), they would not be in this special, most-hated category. They would not be trailing in everyone else’s wake when it comes to what Steven Pinker calls ‘the rights revolutions’.
This reality is reflected in two anguished statements made by libertarian friends who also happen to be gay. One is from James Peron:
There are groups out there that hate blacks or Jews for instance. It is not socially acceptable. You can’t even get away with that sort of hate if you try to claim that God wants you to do it. People won’t accept it.
But, say the same, or worse, about gay people and suddenly you are “standing up for morality,” and “pro-family.”
Realize that when you tell me that a “lot of people agree with Don Cathy” it doesn’t help! Wow! I’m supposed to think that hate directed at me is tolerable simply because enough people believe it! No thanks.
I have been patient for decades. I’ve debated the haters, I’ve tried to reason with them, and I’ve tried my best to be a decent person. As I get older I run out patience. Thirty years ago I could think, “Hey, 20 years from now it will be so different.” Well, at some point you start to think you might not be around long enough to see those things.
This doesn’t mean I won’t try to change minds, but I won’t tolerate the obvious bigots. I won’t let them get away with their bigotry. I will call them on it and name it for what it is. It is not “morality,” but hate. It is not “godly,” but fully humane at the basest and most primitive level—it is not a view for civilized human beings.
Simply put, it you don’t think I should have exactly the same rights as you then go take a long walk off a short cliff—and know that I really wanted to say something a bit stronger there.
If you think I’m sinful, sick, immoral, anti-family, or whatever label you use to justify looking down on me, then just go away. I don’t want you in my life.
I put up with that sort of crap for my entire life and I simply won’t do it anymore. I won’t pretend that you are “well meaning.” I don’t care if you are or not, not when those comments or barbs apply to me, or to people I care about.
I heard hateful things from “friends” more times than I can count. Now, I don’t, because anyone who says those things, or holds those views, is no friend of mine. And, with Facebook, I can make it official. I wish life came with an “unfriend” button.
And this is from Tyler Johnson:
But when it comes down to it, I have freedom of speech too. I have the right to encourage people not to frequent the place. I have the right to air my grievances in a public manner. Nothing in constitutional law provides for a person to make a decision without there being consequences. A person cannot shout fire in a crowded theater without being responsible for the deaths of those that rush to get out. A person cannot shout “nigger” in front of a street gang and not expect to be beat to a pulp. Free discourse goes both ways, and no one side is to have free reign to say what they want to say without any voicing of disagreement.
Because discourse is a two-way street, there is no free-speech element that you are standing up for by showing your solidarity with Chick Fil-A or by joining the boycott. I don’t think any less or more of a person’s view on free speech by a person going to Chick Fil-A or by changing their profile pic to the official pic of the boycott. However, you are sending a message by joining in on the Chick Fil-A Appreciation Day.
By supporting the Chick Fil-A Appreciation Day, you are standing in solidarity with all of the donations, and with all that those donations stand for. In this case, you are standing in solidarity with the barring of any legal recognition of any loving same-sex relationships, including domestic partnerships and civil unions. You are supporting efforts to bring about the recriminalization of sexual relations between people of the same gender. You are standing in solidarity with the Ugandan government officials who sought to make it a crime worthy of the death penalty. If that is what you stand for, more power to you, and I will hope that you will choke on your chicken sandwich.
There has been a great deal of debate in skeptic and atheist groups of late — both online and off — about unwarranted rudeness directed at religious people. Much of the concern is justified, for the simple reason — as my pupil-master taught me — one always catches more flies with honey than vinegar. However — and as much as I agree intellectually with Jonathan Rauch’s arguments (and do read his entire piece, it is excellent) — I think LGBT people have probably earned some slack. Every other kind of prejudiced horror on the planet — racism, misogyny, slavery, xenophobia — can and has existed entirely independently of monotheism. But hating on the queers? That only exists because one particular religious tradition has become globally dominant, especially in Western countries. When we ask LGBT people to be tolerant, we need to remember just how much we’re asking of them.
That’s worth keeping in mind, and not just when eating a chicken sandwich (of any sort).